A Discovery Explainer for Non-Attorneys

So, what kind of lawyer are you? I get this question a lot, and I sometimes find it hard to give a quick answer. For lawyers or other professionals in my field, informing them that I am an eDiscovery Attorney usually provides enough information to allow them to slowly back away from me. For the uninitiated — friends, family, and the few unfortunates who make the mistake of striking up small talk with me — further explanation is needed.

So allow me to explain what it is, exactly, that I do for a living. Discovery 101, if you will.

In most lawsuits, court rules require the parties to exchange information and documents before trial. This is known as the discovery phase of litigation, and it is one of the hallmarks of the American judicial system. Although many courtroom drama storylines might lead you to believe otherwise, we generally don’t allow parties to ambush each other at trial with never-before-seen evidence. In the movie My Cousin Vinny, Mona Lisa explains this concept after Vinny receives files from the prosecutor –

The sides “voluntarily” exchange documents with each other during discovery so that each side can thoroughly develop its case well before trial. I use the dreaded air quotes around voluntarily because, as you might expect, all sorts of shenanigans can negatively influence the relevance, completeness, or timeliness of discovery exchanges.

My practice involves advising companies in navigating the rules, complying with their obligations, and occasionally, responding to the shenanigans of the other side during discovery. Because the vast majority of documents are now electronic (i.e., ESI: electronically stored information) rather than paper, I am known as an eDiscovery Attorney.

An Overview

One of our review workstations.

The specific mechanism used by parties to obtain documents from the other side during discovery is called a document request. (These vary quite a bit from case to case, but here is an example of one.) The document request will specify for the other side which types of documents you want turned over to you.

As you might imagine, these requests are often broad and ambiguous, and in larger cases, the party receiving the requests must do quite a bit of work to adequately respond to them. There are two major steps required to respond to document requests: collection and review.

Collection: Before you can turn over the requested documents, you need to find them. Typically an IT or forensics specialist will be charged with this task, using software that identifies, isolates, and processes a company’s documents. The software then processes out the junk and duplicate files, and also helps analyze the size, type, and nature of the files collected. In this stage, my firm might advise which software to use, which employees to collect from and what questions to ask them, which analytic tools and keyword search terms to implement to better target the relevant documents, and generally offer lawyerly counsel on the who, how, when, what, and where of the collection.

Review: After the files are collected and processed, they need to be reviewed. You might think that because these are the company’s own files, it might not be necessary to review them before sending them out to the other side, right? But the documents need to be reviewed for two overarching purposes:

to remove extraneous and privileged documents from the group being produced, and

to evaluate and develop your own case and defenses.

First, it is essential that you give the other side only the documents that you are required to produce. If you hand over documents unrelated to what has been specifically requested or implicated in the current lawsuit, they could be used as ammunition for a new or different lawsuit, or best case scenario, simply provide your private business information to which they are not entitled. Indeed, certain documents, such as your communications with your attorneys, may be privileged, and bad things (such as the waiver of such privilege) can happen if those are disclosed to the other side.

Further, if you produce a ton of documents that were not requested, your production could be considered a “document dump” which is, as the name implies, impermissibly dumping non-responsive documents on the other side in an attempt to increase their review costs, or to bury the more important documents that you hope go unnoticed.

The second, and perhaps more important, reason you need to review your own documents, is so that you can evaluate and build your own case and defenses to the other side’s claims. The client may have a general idea of how the facts at issue unfolded, but most complex litigations require an in-depth analysis of the communications that transpired to truly understand, and to prove, what happened. You will learn the specific facts, chronology, motivations, and claims and defenses of your client during the review.

Before the review phase, the documents are loaded into a database connected to a review platform, which allows users to view an image of the document next to a checklist (a coding sheet) that we will customize to capture the pertinent aspects of the documents as they are reviewed. The coding sheet should capture the specific factual and legal issues that will be most useful during the course of the case. So, for example, the checklist will typically allow the reviewer to mark whether the document is confidential, privileged, responsive, or key, and code for any number of specific issues that we want to track—such as, does the document relate to “cancelation of the contract” or “collusion,” or “reasons for improper termination” or any other legal or factual issue of importance. It is critical to determine early on which issues to capture, particularly for larger cases, where the number of documents you might need to organize and analyze may range in the hundreds of thousands or even millions. A well-designed coding sheet should optimize the review team’s coding accuracy while meeting the tactical needs of the trial team.

Once the coding sheet is set, our firm’s attorney review teams will then systematically review the documents for the information to be captured in the coding sheet. To make lighter work of it, our attorneys use dual monitors to view the full document and coding sheet at the same time. It’s a little easier on the eyes and minimizes scrolling, allowing us to review documents more quickly and accurately.

During and after the review, the coding determinations made by our team will be used to pinpoint the specific documents needed to, say, prepare a witness or make a particular legal argument.

Summary

Very similar to what I do all day, when you think about it.Photo by Manoel Lemos on flickr
To make a long story short, our firm partners with other firms and in-house counsel to assist them in the collection and document review portions of discovery. We do this both to comply with our clients’ discovery obligations, and to find and organize the crucial information they need to build or defend their cases. We’re like deep sea divers searching the vast ocean waters for buried treasures of information, trying avoid the pitfalls, traps, and predators lurking in the depths. That’s what I like to tell myself, anyway.

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“The Tanenholz team was charged with reviewing all of our documents, roughly 500,000 pages, developing best practices for record creation, establishing a document hierarchy linking structure to connect the documents based on a number of factors and performing quality control to ensure accuracy of the documents. This project was and remains massive in scope and complexity and the Tanenholz team was diligent, thorough and creative in working through the numerous issues that arose. David was very hands on during the project and bent over backwards to make sure all of our needs were met in the most accurate, efficient way possible.”

Paul MamalianGeneral Counsel & EVPHMSHost

“All told, [the firm] executed a superior review at less than 1/3 of the cost we had originally projected, and freed our team to focus on the merits and litigation of the case. Our client was delighted with [the firm’s] performance in every respect, and was sincerely grateful to us for bringing them into the case not only in terms of lowering cost and adding value, but in bringing expertise to the representation.”